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Bazzaro v. Issaenko

Court of Appeals of Minnesota

June 17, 2013

Martina Bazzaro, Respondent,
v.
Olga Aleksandrovna Issaenko, Appellant.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CV-11-22810.

Carol M. Grant, Kurzman, Grant & Ojala, Minneapolis, Minnesota (for respondent).

Rick L Petry, Petry Law Firm, Minneapolis, Minnesota; and Albert T. Goins, Goins Law Firm, Minneapolis, Minnesota (for appellant).

Considered and decided by Chutich, Presiding Judge; Smith, Judge; and Klaphake, Judge.

Klaphake, Judge [*]

Appellant Olga Aleksandrovna Issaenko challenges the district court's harassment restraining order (HRO), which prohibits her from contacting respondent Martina Bazzaro by any means, arguing that (1) the evidence does not support the issuance of an HRO; (2) the referee hearing the matter made evidentiary errors; (3) the referee violated the district court's remand order; (4) the district court erred by confirming the HRO; and (5) the HRO violates appellant's First Amendment rights. We affirm the HRO, but remand to the district court for correction of a clerical error in accordance with Minn. R. Civ. P. 60.01.

DECISION

We review the district court's grant of an HRO for an abuse of discretion. Kush v. Mathison, 683 N.W.2d 841, 843 (Minn.App. 2004), review denied (Minn. Sept. 29, 2004). We review the district court's findings for clear error and defer to the district court's opportunity to judge the witnesses' credibility. Id. at 843-44. But whether the facts found by the district court satisfy the elements of harassment is a question of law that we consider de novo. Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn.App. 2008), review denied (Minn. Mar. 28, 2006).

Respondent was a professor and the head of a research laboratory at the University of Minnesota. Appellant, a research scientist, was a probationary employee in respondent's laboratory. At respondent's request, the university's human resources department terminated appellant's employment before the end of her probationary period. Appellant was warned by human resources representatives, the university police, and representatives of the university's Office of the General Counsel not to contact respondent. After an extended period of unwanted contacts, respondent sought and the district court issued an HRO.

Sufficiency of the evidence

An HRO can be granted on a showing of "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target." Minn. Stat. § 609.748, subds. 1(a)(1), 2 (2010).

Appellant argues that the district court[1] erred by issuing an HRO without finding that there was an "imminent threat" or that the harassing conduct was likely to continue. Appellant cites to no authority that the party requesting an HRO must be under an "imminent threat." Appellant bases her continuing conduct argument on Davidson v. Webb, 535 N.W.2d 822 (Minn.App. 1995), which has been superseded by statute. Under the current version of the statute, the person seeking an HRO must demonstrate repeated incidents of harassment, but is not required to establish the likelihood of future harassing conduct.

Appellant argues that there was no evidence of repeated incidents of intrusive or unwanted acts, because "all of the communications from [appellant] to [respondent] related to a single incident, namely her employment with the University of Minnesota." This is an extremely narrow reading of the word "incident." In Kush, this court ruled that when a dispute between the parties centered on the use of an easement, telephone calls, face-to-face arguments, and the posting of "no parking" signs around the property were sufficient evidence of repeated incidents of intrusive or unwanted conduct. 683 N.W.2d at 844. Although appellant's employment or termination may have been the root cause of her conduct, the record supports the referee's finding of repeated incidents, all occurring after appellant was warned not to contact respondent: (1) respondent had records of 15 telephone calls; (2) respondent produced 16 emails sent by appellant; (3) respondent testified that in total she received at least 100 unwanted emails from appellant; and (4) other university staff and respondent's professional colleagues reported receiving multiple unsolicited emails from appellant accusing respondent of professional misconduct. This court has stated that the first element ...


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